West Virginia Judiciary

Rules of Appellate Procedure

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Part VI. Disposition of Cases

 

Table of Contents Full Table of Contents
  1. Memorandum decisions
  2. Opinions of the court
  3. Interest on judgments
  4. Costs
  5. Petition for rehearing
  6. Issuance of mandate; stay of mandate
  7. Dismissal

Memorandum decisions
  1. Memorandum decisions. At any time after a case is mature for consideration by the Court, the Court may issue a memorandum decision addressing the merits of the case.
  2. Motion for disposition by memorandum decision. A party may move that a docketed case be disposed by memorandum decision by filing an original and the number of copies required by Rule 38 of a motion for disposition by memorandum decision. No motion for disposition by memorandum decision shall be accepted for filing after twenty days from the date the appeal is perfected, except if such motion is for the purpose of bringing to the Court's attention the effect that a controlling legal authority, issued after the case was perfected, may have on the case pending in this Court.  The opposing party has ten days from the date of filing of the motion to file a response and the number of copies required by Rule 38. The filing of a motion for disposition by memorandum decision shall not toll any time limitations established by law, rule or order.
  3. Affirmance. A memorandum decision affirming the decision of the lower tribunal may be entered under this Rule when: (1) this Court finds no substantial question of law and the Court does not disagree with the decision of the lower tribunal as to the question of law; (2) upon consideration of the applicable standard of review and the record presented, this Court finds no prejudicial error; or (3) other just cause exists for summary affirmance. The memorandum decision shall contain a concise statement of the reason for affirmance, and a concise statement of the reason for issuing a memorandum decision instead of an opinion.
  4. Reversal. A memorandum decision reversing the decision of the lower tribunal shall contain a concise statement of the reason therefor and a concise statement of the reason for issuing the memorandum decision instead of an opinion. A memorandum decision reversing the decision of a circuit court should be issued in limited circumstances.
  5. Citation of memorandum decisions. Memorandum decisions may be cited in any court or administrative tribunal in this State; provided, however, that the citation must clearly denote that a memorandum decision is being cited, e.g. Smith v. Jones, No. 11-098 (W.Va. Supreme Court, January 15, 2011)(memorandum decision). Memorandum decisions are not published in the West Virginia Reports, but will be posted to the Court's website.
  6. Rehearing. Memorandum decisions are subject to the rehearing procedures set forth in Rule 25. Unless otherwise provided, the memorandum decision is not final until the Court has issued a mandate under Rule 26.

Opinions of the court
  1. Release and effect of opinions. Opinions of the Court will be released by the Clerk at 3:00 p.m. on the day of filing, unless circumstances require otherwise. The Clerk will provide a copy of the opinion to each party in the case. Opinions of the Court do not take effect until issuance of the mandate under Rule 26, unless otherwise provided in the opinion.
  2. Publication. The Clerk will cause opinions of the Court to be issued in slip form. The slip opinions issued by the Clerk and appearing on the Court's website are not the final, official opinions of the Court. Slip opinions are subject to modification and petitions for rehearing pursuant to Rule 25. Opinions of the Court remain subject to clerical correction until officially published in the bound volumes of the West Virginia Reports (West Publishing Co.). Prior to issuance of the mandate, the parties may inform the Clerk of typographical or other formal errors.

Interest on judgments

Unless otherwise provided by law, if a judgment for money in a civil case is affirmed, whatever interest is allowed by law shall be payable from the date the judgment was entered in the circuit court. If a judgment is modified or reversed with a direction that a judgment for money be entered in the circuit court, the mandate shall contain instructions with respect to allowance of interest.


Costs
  1. To whom allowed. Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the petitioner unless otherwise agreed by the parties or ordered by the Court; if a judgment is affirmed, costs shall be taxed against the petitioner unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the respondent unless otherwise ordered; if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the Court.
  2. Costs for or against the state. In cases involving the State of West Virginia or an agency or officer thereof, if an award of costs against the State is authorized by law, costs shall be awarded in accordance with the provisions of subdivision (a); otherwise, costs shall not be awarded for or against the State.
  3. Taxable costs. Costs of assembling and filing the appendix are taxable as costs in the discretion of the Court and may be divided among the parties to the appeal. Other taxable costs include costs for the preparation and handling of the designated record. Attorney's fees and costs are not taxable unless specifically provided by law.
  4. Costs in disciplinary actions. If the Court directs that costs be paid in connection with a lawyer or judicial disciplinary action, disciplinary counsel shall, within twenty days of entry of the applicable order, memorandum decision, or opinion, provide the Court and the respondent in the disciplinary action with a certified statement of the costs as specified by the Court.
  5. Clerk to insert costs in mandate. The Clerk shall prepare and certify an itemized statement of costs taxed in the Supreme Court for insertion in the mandate. If the mandate has been issued before final determination of costs, the statement, or any amendment thereof, may be added to such order at any time upon request of the Clerk.
  6. Costs on appeal taxable in the circuit courts. Costs incurred in the preparation and transmission of the record, the cost of the reporter's transcript, if necessary for the determination of the appeal, and the premiums paid for cost of appeal bonds or other bonds to preserve rights pending appeal, shall be taxed in the circuit court as costs of the appeal in favor of the party entitled to costs under this rule.

Petition for rehearing
  1. Time for filing. A petition for rehearing may be filed within thirty days of release of any memorandum decision or opinion of this Court that passes upon the merits of an action, unless the time for filing is shortened or enlarged by order. The requisite number of copies under Rule 38 must be filed with the Clerk. In those instances when the Court shortens the time period for issuance of the mandate and directs the Clerk to issue the mandate in accordance with that time frame, the Court shall set forth by order the deadline for filing.
  2. Content and form of petition. A petition for rehearing is granted only in exceptional cases. The petition shall comply with the number of copies and page limitation set forth in Rule 38 and shall state with particularity the points of law or fact which in the opinion of the petitioner the Court has overlooked or misapprehended, and shall contain such argument as the petitioner desires to present. Repetition of argument previously presented to the Court in the case is not a proper basis for a petition for rehearing.
  3. Response. A response to a petition for rehearing is not required. If desired, an opposing party may file a response and the number of copies required by Rule 38 of a response within fourteen days of the filing of the petition for rehearing.
  4. Consideration of the petition. When the time for filing a response has passed, the petition for rehearing will be deemed mature for consideration by the Court. Upon its consideration, the Court may, in its discretion, refuse the petition for rehearing or grant the petition for rehearing and direct by order such further proceedings as are required, including issuing a modified opinion or memorandum decision, or taking such other action that is necessary to accomplish substantial justice in the case.

Issuance of mandate; stay of mandate
  1. Effect of mandate. Issuance of the mandate terminates jurisdiction of the Supreme Court in an action before this Court, unless the Court has provided by order pursuant to Rule 25(a) that a petition for rehearing may be filed after a mandate has issued. Unless otherwise provided, an opinion of the Court or memorandum decision of the Court considering the merits of a case is not final until the mandate has been issued.
  2. Time for issuance, contents.  The timely filing of a petition for rehearing will stay issuance of the mandate. If a petition for rehearing is not timely filed, the Clerk will issue the mandate as soon as practicable after the passage of thirty days from the date the opinion or memorandum decision is released, unless the time is shortened or enlarged by order.  The mandate will contain a summary description of the judgment of the Court, and any direction as to costs or other matters. The mandate must be read and construed together with the opinion or memorandum decision in the case. If a petition for rehearing is denied, the Clerk will issue the mandate within seven days of the date of the order refusing the rehearing petition, unless the time is shortened or enlarged by order.
  3. Stay of mandate pending application for certiorari. A stay of the mandate pending application to the Supreme Court of the United States for a writ of certiorari may be granted upon motion, reasonable notice of which shall be given to all parties. Unless the Court otherwise provides in its order, the stay shall not exceed ninety days. If during the period of the stay there is filed with the Clerk of the Supreme Court a notice from the Clerk of the Supreme Court of the United States that the party who has obtained the stay has filed a petition for the writ in that court, the stay shall continue until the filing of an order of the Supreme Court of the United States denying the petition for writ of certiorari, or, in the event the petition for writ of certiorari is granted, until the mandate of the Supreme Court of the United States is issued; provided, however, that if a case is remanded to this Court for further proceedings following an appeal to the Supreme Court of the United States and the mandate of this Court has not previously issued, the mandate need not issue, and this Court may provide by order for further proceedings as are required under the circumstances of the case. A bond or other security may be required as a condition to the grant or continuance of a stay of the mandate.

Dismissal
  1. Voluntary dismissal. If the parties to an appeal or other proceeding shall sign and file with the Clerk of the Supreme Court an agreement that the proceeding be dismissed, specifying the terms as to payment of any costs, the Clerk shall enter the case dismissed. An appeal may be dismissed on motion of the petitioner upon such terms as may be agreed upon by the parties or fixed by the Court.
  2. Involuntary dismissal. At any time after an appeal is docketed, a party to the appeal may file a motion to dismiss for failure to comply with the Rules of Appellate Procedure or for other just cause. Upon the granting of a motion to dismiss under Rule 27, the case shall be dismissed from the docket of the Supreme Court.  The Court may, on its own motion, send a notice to the parties of its intent to dismiss an action for failure to comply with the Rules of Appellate Procedure or for other just cause, and may thereafter dismiss the action if the interests of justice so require. The Court may dismiss an action that is moot on its own motion without prior notice to the parties.